Andrew Moloney Considering Legal Action To Have Appeal Heard Before Nevada Commission

Andrew Moloney is prepared to have his day in court in order to be heard before a state commission.

Nearly two months after receiving a formal appeal regarding the No-Decision verdict that came with Moloney’s junior bantamweight title fight rematch with Joshua Franco, the Nevada State Athletic Commission (NSAC) has yet to assign a date to field the case.

San Antonio’s Franco was not permitted to continue prior to the start of round three due to his right eye having swollen shut. The ruling by referee Russell Mora was that the damage was caused by a headbutt, to which Moloney and his team have vehemently and repeatedly contested. So far, the NSAC has remained resistant in allowing the case to be argued in a formal setting, with the delay leaving Moloney’s legal team prepared to take the necessary steps to advance matters.

“I sincerely hope the Commission will reverse course and grant Mr. Moloney a hearing,” Josh Dubin, Moloney’s lead attorney stated to the NSAC in a certified letter, a copy of which has been obtained by BoxingScene.com. “In the event that you continue to deny Mr. Moloney the opportunity to be heard before the Commission, we will take appropriate legal action in the Nevada courts to enforce his rights.”

Moloney and Franco met last November in a rematch to their secondary 115-pound title fight, coming less than five months after Franco claimed a 12-round unanimous decision to dethrone then-unbeaten Moloney last June. Both fights aired live on ESPN from the MGM Grand Conference Center in Las Vegas, with the first bout serving as one of the best of 2020 whereas the rematch was more memorable for all of the wrong reasons.

The sequel saw Australia’s Moloney forcing Joshua’s right eye to swell shut after just two rounds. The fight was stopped just prior to the start of round three, at which point referee Russell Mora deemed that the injury was caused by a clash of heads. Replays appeared to indicate that it was Moloney’s jab which initiated the damage, and thus should have been awarded a TKO victory along with regaining his old title. 

A 26-minute on-air delay to thoroughly examine replays of the sequence and the fight only resulted in allowing the ruling in the ring to stand.

In accordance with NSAC rules and regulations, Moloney’s team filed an official appeal less than two weeks later. As previously reported by BoxingScene.com, the response from the Nevada Attorney General’s Office (NVAGO) suggested a lengthy delay, citing COVID and claiming a full agenda for the next available commission meeting (which took place December 2) in justifying the claim while also noting the matter was “currently under review.”

Naturally, the reply was met with puzzlement by Moloney’s lawyers, citing the contradiction to NAC Section 467.682(1) which reads as follows:

“A referee is responsible for enforcing the rules of the contest or exhibition. The referee shall not permit unfair practices that may cause injuries to an unarmed combatant. The referee is the sole arbitrator of a bout, and the referee’s decisions in enforcing the rules of a contest or exhibition, declaring fouls or stopping a contest or exhibition may not be overturned except as otherwise provided pursuant to subsection 3 of NAC 467.770 after a hearing before the Commission.”

The December 2nd hearing came and went without the matter appearing before the commission, which has yet to schedule its first monthly agenda for the new year. The lone response to come from the commission—via the Attorney General’s office—came on December 11, including an official letter from one day prior in stating that “the Nevada State Athletic Commission… took the position that my client Andrew Moloney’s argument “does not provide a basis for the Commission to change the result.” 

The aforementioned reply along with three weeks’ of silence has prompted a new entry in this ongoing case.

“Respectfully, we disagree with this position and the strained logic of the argument in your Letter,” Dubin notes in his certified letter to the commission on Tuesday. “It has become clear that you are merely attempting to justify the denial of a hearing before the Commission—a hearing Mr. Moloney should be afforded as of right under Nevada Administrative Code (“NAC”) Section 467.682(1).

“I write to clarify for the Commission how Mr. Moloney’s protest of the outcome of his November 14th bout directly implicates, per NAC Section 467.770(3), an “error in interpreting a provision of [NAC Chapter 467],” and to urge the Commission to reconsider the decision to not allow Mr. Moloney to come before it for a hearing.”

NAC section 467.770(3) states: “As the result of an error in interpreting a provision of this chapter, the referee has rendered an incorrect decision.”

Thus remains the basis of Moloney’s argument, complete with still frames of the fight and sequence in question to contest Mora’s interpretation of a headbutt.

“The Commission takes the position that, “[e]ven assuming arguendo that the headbutt did not occur, such would only amount to an incorrect factual determination of the referee and would not be a misinterpretation of a provision of NAC 467.” Mr. Moloney is, in fact, not asserting the Referee misapprehended what he observed,” explains Dubin. “To the contrary, the video evidence supports an inference that the Referee misinterpreted the definition of “butting with the head” under NAC 467.675(7).

“NAC Section 467.675(7) states: Butting with the head, shoulder, knee or elbow. The Cambridge English Dictionary defines the verb “to butt” as “to hit something or someone hard with the head.” The Referee is obligated to interpret “butting” based on its plain meaning, a standard set by the Nevada Supreme Court.   

However, video stills from the fight indicate the Referee interpreted “butting” to mean something less than “hitting”—e.g., “grazing” or coming in close proximity with the head. That is clearly an error of interpretation for which we are seeking a hearing before the Commission. Mr. Moloney and his opponent’s heads did come close to each other—that was not a misapprehension by the Referee.”

The argument continues: “The Referee did not misperceive the fighters’ heads coming close, because the video shows their heads were proximate to one another (although, as I explained in my November 18 letter, their heads did not touch and none of the above images indicate a headbutt). Rather, Referee Mora misinterpreted NAC Section 467.675(7) to include when the combatants’ heads are proximate to one another. But that is outside of the plain meaning of a “headbutt.” If Mr. Moloney is given the opportunity to present video of the fight at a hearing before the Commission, we would be able to definitively show that the Referee misinterpreted the meaning of ‘butting with the head.

“You argue it is irrelevant whether or not a headbutt occurred because all that matters is what the Referee perceived. But this is an untenable position.  If the Referee is operating with his own, incorrect definition of what constitutes a headbutt, he might call a non-headbutt and a headbutt the same way and could therefore mistakenly call a foul without any available recourse for the aggrieved combatant to seek before the Commission.”

Commission compliance within its own rules would at least provide Moloney a chance for what he and his team believe would be the right call to be made in the aftermath. As such, the revised ruling would render the Aussie a two-time secondary titlist rather than enter a still-discussed third fight once again as the challenger.

Without such a path being made available, the conversation then turns to why the rules even exist.

“Indeed, your Letter states that “[p]ursuant to” NAC Section 467.682(1), “a referee’s decision of whether a blow or maneuver is a foul is inherently within the referee’s discretion,” but this ignores that NAC Section 467.682(1) also says the referee’s decisions “declaring fouls” may be overturned “pursuant to subsection 3 of NAC 467.770 after a hearing before the Commission,” notes Dubin. “It cannot be the case that the Referee has complete discretion over decisions to declare fouls. Otherwise, the words of NAC Section 467.682(1) would be meaningless.

“At the very least, whether or not Mr. Mora misinterpreted NAC Section 467.675(7) is something that warrants scrutiny and is in the interests of promoting public confidence in your Commission. The Commission should err on the side of caution and hear Mr. Moloney out, instead of relying on a strained, narrow legal interpretation to justify denial of his rights before all of the evidence has been reviewed. I sincerely hope the Commission will reverse course and grant Mr. Moloney a hearing.”

Jake Donovan is a senior writer for BoxingScene.com. Twitter: @JakeNDaBox